Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?

from the ridiculous-copyright-fights dept

The Aereo copyright fight continues. As you may recall, Aereo is a startup that is trying to let people stream free over-the-air broadcasting over the internet. To stay within the framework of copyright law, they've set up the most inefficient system possible, in which each subscriber gets his or her own antenna, connected to a streaming device. From a technical standpoint, this is insane. But, from the legal standpoint, it's required. Aereo won the first round, as the district court refused to grant an injunction. That fight quickly jumped to the appeals court, where Aereo has filed its main brief, which basically says "Cablevison, Cablevision, Cablevision, Cablevision, Cablevision, Cablevision, Cablevision..."

If you don't follow this stuff closely, a few years back, there was a ruling in the same appeals court, that found that Cablevision's remote DVR system was basically legal. As we noted at the time, it was the right decision, though for ridiculously convoluted reasons, which really showed just how ill-prepared copyright law is for modern technology and innovation. That ruling, however, is a key one that Aereo is relying on to argue that its remote streaming system is legal. So its 90+ page filing is basically page after page of Aereo trying to explain why it's just like Cablevision.

For the most part, I find its arguments compelling -- as they also clearly highlight how the broadcasters are basically looking to have a veto on innovations they don't like, and why that doesn't serve the public interest. They highlight that the broadcasters argument seems to be that copyright law is designed to protect them, rather than the public interest. Aereo points out that they're mistaken in this claim.

While Appellants imply that the sole purpose of the Copyright Act is to protect content owners, the Act was instead intended to strike the proper balance between copyright owners, on the one hand, and public access to information on the other.... Congress expressly and deliberately exempted “private” performances from copyright protection. Further, consumers have a right of access to local over-the-air broadcast television. There is no basis in law to confine that use to a home-based antenna or equipment, to fully time-shifted copies (whether on VCR, DVR, or RS-DVR), or to only non-Internet related deployment. Indeed, contrary to what may be the view of certain Appellants and amici, copyright laws were never intended to be used to confine consumers to outdated technology. The reality is that the networks fought VCRs, and they fought remote DVRs, and they lost in both cases. This is simply another attempt to preserve the status quo as a business matter without regard to fundamental copyright principles.

There is, also, a somewhat amusing response to the claims made by the broadcasters that Aereo should be found guilty for doing everything possible to avail itself of the specifics in the Cablevision case. They argue -- as we've seen some commenters on our posts argue -- that Aereo's specific technical decisions show that it was somehow intending to avoid the spirit of the law... by complying with the letter of it. Basically, they're complaining that Aereo may be jumping through a legal loophole they hadn't noticed. However, as Aereo points out, this argument really should work in Aereo's own favor, as the networks are basically admitting, flat out, that Aereo was doing everything it possibly could to live within the confines of the law:

Finally, both Appellants and amici argue that the Aereo technology is an “artifice” or some clever attempt to get around copyright law. Essentially, Appellants are arguing that Aereo carefully designed its system to comply with Cablevision. There is considerable irony in Appellants’ suggestion that Aereo is somehow culpable because it carefully designed its system to comply with copyright law.

Of course, it's interesting to note that one of the amici briefs on the other side came from Cablevision itself. This is a pretty cynical and obnoxious move from Cablevision. Having already won its legal fight that made the remote DVR legal, it knows that Aereo is actually potentially competitive. So rather than cheering another innovator on, following down the road it paved, Cablevision cynically jumps in to protect its turf and pretend that the ruling it fought so hard for doesn't apply to Aereo. I've included Cablevision's ridiculous brief below as well, in which it argues that it has a "direct interest in the proper interpretation" of the decision in its own case. That's hogwash. Cablevision's position here is solely to abuse copyright law and an important decision on its own behalf to now crush a competitor.

Oh, and in checking in on the docket on the case, I should mention that the silly amicus brief we talked about from former Register of Copyrights, Ralph Oman, in which he argued that new technologies should be illegal until Congress gives explicit approval, was amusingly rejected by the court for failing to comply with filing requirements. The court noted that it had given Oman "due notice" and he had not fixed the problems with his filing. However, after this rejection, he was able to refile yesterday...

Either way, this case really seems to be bringing out the crazy, crazy anti-innovation, anti-competition arguments from the pro-copyright crowd.

Re:

Queue:
boB
OOTB
and
Average_joe

In 5... 4... 3... 2...

What's there to say? Mike, of course, didn't go into any of the legal nuances. He just (predictably) copies Aereo's arguments that they're Just Like Cablevision! There's no actual analysis of whether that's true or whether there are material differences between the two, which is obviously *the* major topic of debate in this case. Mike just latches onto their argument, as he sides with every accused infringer. Instead of pointing to the actual substantive legal arguments, he cites the line about how they're trying to kill innovation just like the VCR and the Remote DVR! Instead of analyzing the legal issues, Mike decides which side he wants to win for policy reasons and then, working backwards, pretends like that side must have the better legal argument. Snorezville, dude. Sorry if you got your popcorn out for nothing.

Re: Re: Re:

As to legal analysis, would it not be moot until there is a court ruling on the matter settling it as a matter of law before trying to guess how the law will decide?

But the fun is in applying the existing doctrine to the new fact pattern and trying to guess which way the case will go based on who has the better overall argument (working forwards, as opposed to backwards). The nuances of the legal arguments are the fun part. How is this like Cablevision? How is it not? Who has the better fact, law, and policy arguments? For me anyway, this part is more fun than just getting the answer later. Of course, that's fun too though.

As they followed the same path as a precedent setting case on the topic to the letter of the law, and the otherside merely argues that because they followed the law they must be doing something wrong.

Re: Re: Re: Re:

Re: Re: Re: Re: Re:

Technological inefficiencies are fun!

I get that. But I disagree with Mike's notion that this somehow shows "just how ill-prepared copyright law is for modern technology and innovation." The law is simple. The copyright owner has the exclusive right to publicly perform the copyrighted work. That's fundamental and doesn't change. The problem arises when "technology and innovation" bump up against that right, and the proper balance between the two has to get worked out over the years. To try and blame this on "stupid old copyright!" is just silly. All "technology and innovation" has to take into account preexisting rights, and this is just normal evolution. New cars have to take into consideration the federal guidelines for making new cars, just like "technology and innovation" has to take into consideration copyright rights.

Re: Re: Re: Re: Re: Re:

So... Aereo is doing exactly what the cable companies used to do (capture aerial transmissions and rebroadcast them over their cable network), but since it involves the internet it's illegal. That's the thrust of your argument. By the way, the cable companies got a pass on doing exactly that.

Re: Re: Re: Re: Re: Re: Re:

"but since it involves the internet it's illegal."

Not illegal - but should be subject to the same requirements as running a cable company. You know, everything from "must carry" to paying for community channels, information channels, and the like. Oh yeah, and paying for the content they use, if that is the way the deal operates.

Further, you might have the question of licensing and permits to operate such a business. Does operating a distribution system such as this require and FCC license?

Just because technology allows something doesn't mean there isn't already laws that cover how it is support to operate. If Aereo wants to be a cable company, fine - they can do all that a cable company has to do. Do you think they would still want to operate if they had to do all that?

Re: Re: Re: Re: Re: Re: Re: Re:

Not illegal - but should be subject to the same requirements as running a cable company. You know, everything from "must carry" to paying for community channels, information channels, and the like. Oh yeah, and paying for the content they use, if that is the way the deal operates.

Further, you might have the question of licensing and permits to operate such a business. Does operating a distribution system such as this require and FCC license?

Just because technology allows something doesn't mean there isn't already laws that cover how it is support to operate. If Aereo wants to be a cable company, fine - they can do all that a cable company has to do. Do you think they would still want to operate if they had to do all that?

That's a great point. Mike focuses on the fact that his tech buddies have figured out ways to sell other people's content for them. Of course, his buddies don't want to pay for that content. They can't just skip the part where the content is paid for by callikng it "Innovation!"

Re: Re: Re: Re: Re: Re: Re: Re: Re:

It all depends on what you consider to be Aereos business. Are they reselling the content? Or are they renting out a tv antennae?

I think you should consider that Aereo has no control over the content they recieve. Now i have personally looked into the details of what they are offering, but if they are not storing any of the recieved transmissions for general use it is hard to say they are reselling the content. If they are in fact forcing the individual user to select the channel they recieve, and will only record a personal copy for that user at the users request i would argue that they are simply renting out a remote DVR and tv Antennae.

Re: Re: Re: Re: Re: Re: Re:

So... Aereo is doing exactly what the cable companies used to do (capture aerial transmissions and rebroadcast them over their cable network), but since it involves the internet it's illegal. That's the thrust of your argument. By the way, the cable companies got a pass on doing exactly that.

The difference is that the retransmissions by the cable companies were public, and therefore required a license. The cable companies didn't get a "pass on doing exactly that," they got a license *to do* exactly that--the statutory, compulsory retransmission license. Similarly, the retransmissions by Cablevision--from the head end to the remote DVRs--though public, were licensed (or so the argument goes, but I'm not convinced that's exactly right). Aereo is trying to do what the cable companies and Cablevision did not--make unlicensed, public performances.

Re: Re: Re: Re: Re: Re: Re: Re:

public performances

Complete nonsense. I love how all the copyright apologists bring out the "public performance" argument for anything involving the internet - all it does is show how weak the argument is and how desperate you are.

The networks are broadcasting their content over the public airwaves. All Aereo does is allow a private individual to rent out their own individual antenna and related equipment and receive the signal across the internet for their own private viewing.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

So if that's your battle, then respond to the second part of my post which addresses it.

Aereo is no more of a public performance than me using a VCR to copy broadcast TV at a friend's house (still in the same broadcast area) because he gets better reception of a channel than I do, then driving it to my house and watching it on my TV.

If that somehow fits into the definition of "public performance" than its just more fuel on the raging inferno that copyright is fucked up beyond any repair in our modern lives.

Re: Re: Re: Re: Re: Re:

> The law is simple. The copyright owner has the exclusive right to publicly perform the copyrighted work.

Except that's not the law. That's not an accurate summary of it's original intent or even it's current form.

We are talking about broadcasts here. BROADCASTS.

That fact alone makes things a little more subtle than you would like to pretend they are. Not only do you have the usual balance where copyright is supposed to include the public interest, you also have the shared EM spectrum which is also supposed to have a public interest component to it.

The idea that you can't repeat a BROADCAST to enable greater access is obscene.

Re: Re: Re: Re: Re: Re: Re:

The issue is the retransmission of broadcasts. Cablevision has a license to rebroadcast transmissions because such transmissions are public performances that need to be licensed. Aereo is trying to do the same thing Cablevision does, i.e., retransmit broadcasts, but without paying the licensing fees that Cablevision pays.

Re: Re: Re: Re: Re: Re: Re: Re:

The issue is the retransmission of broadcasts.

Simply calling it a "retransmission" is begging the question, frankly. It's like calling the wire from your antenna to your TV a "retransmission."

I personally do not buy Hart's made-up idea of the "missing link." It is very hard for me to believe that the court in Prime Time (a case about transmitting the same program, which was not free over-the-air, to multiple subscribers in Canada) ever intended the the "transmission" from a private antenna to a private receiver to be "a step in the process by which [a] protected work wends its way to a public audience." You might as well call the "retransmission" from my computer to my monitor a "public performance." It doesn't pass the sniff test (like most of Hart's legal analysis).

The language of "public performance" statute seems to support Aero: "To perform or display a work 'publicly' means [...] to transmit or otherwise communicate a performance or display of the work [...] to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."

The plural, "members," means that the sentence should be read "in the same place or in separate places as each other and at the same time or at different times as each other."

In other words, to perform a work "publicly," the "device or process" must transmit a single performance in a way that multiple members of the public can receive it. Just like every normal person in the English-speaking world thinks, when they hear the word "public performance."

Re: Re: Re: Re:

But the fun is in applying the existing doctrine to the new fact pattern and trying to guess which way the case will go based on who has the better overall argument (working forwards, as opposed to backwards).
Which Mike has done, acknowledging that Aereo will likely lose the case in previous articles.

He higlights the case now to suggest that Region-based windowing and other broadcast restrictions are not fully feasible in today's digital market, and that the law can't cope with these changes. He wants the case to win and does paint it in that light.

Here is an interesting set of arguments I find to be presented in the Copyhype article:
ivi was shot down because it did not qualify as a cable service under Section 111. The 'missing link' from Copyhype is that Aereo (and ivi) are a cable service. If they are a if all they are is a cable service, they should be able to function by giving the standard rebroadcast fee.

Alternatively, if you argue that failure to abide by standard region-based Windowing costs you Section 111 status, would that change if I region-locked a subscribers feed to an antenna set up in their region of residence? I would enjoy your take on this.

Re: Re: Re: Re: Re:

ivi was shot down because it did not qualify as a cable service under Section 111. The 'missing link' from Copyhype is that Aereo (and ivi) are a cable service. If they are a if all they are is a cable service, they should be able to function by giving the standard rebroadcast fee.

But Aereo is not arguing that they are a "cable system" as ivi argued, and Section 111 is not in issue in the Aereo appeal. Aereo instead is arguing that the performances involved are not even public. The claim is that they're private performances, so the public performance right is not even implicated.

The key to understanding the "missing link" argument put forth by Terry Hart on Copyhype is in knowing that each step along the way in which a work reaches its audience is considered to be a public performance. Or as the Second Circuit said in NFL v. Primetime, "each step in the process by which a protected work wends its way to its audience" is itself a public performance.

The "missing link" argument put forth on Copyhype involves Aereo's transmission from its antennae to its recording devices. In Cablevision, the transmission from the head end to the remote DVRs was not mentioned by the appellate court (as far as I can recall), because Cablevision had a license to retransmit the works. But Aereo has no such license, so the public performance that occurs between its antennae and recording devices is not licensed. While Cablevision was covered since it had a public performance license, Aereo is not.

That's the argument anyway, at least as I understand it. I'm not convinced that Cablevision had a license to send the performances from its head end to its remote DVRs, so I think there's maybe another layer of nuance there that's missing. But at the same time, I also think Cablevision is confusing and misguided. Perhaps it just doesn't fundamentally, and doctrinally, make sense. I'm not convinced the court applied doctrine so much as it made it up.

Re: Re: Re: Re:

Re: Re: Re: Re:

the future parasite on society squeaks:

"But the fun is in applying the existing corrupt doctrine to the random new fact pattern and trying to guess/influence which way the case will go based on who has the better connections and most money (corrupting forwards, as opposed to backwards).

The nuances of the deep political arguments are the funand profitable part. How is this like Cablevision? It doesn't matter: We'll 'argue'/bribe the position which benefits *us*, today. How is it not? It doesn't matter: We'll 'argue'/bribe the position which benefits *us*, today. Who has the better fact, law, and policy arguments? It doesn't matter: We'll 'argue'/bribe the position which benefits *us*, today. For me anyway, this part is more fun and profitable than just getting the answer later. Of course, that's fun too though. Lawyers win either way! ! !

Re: Re:

Mike, of course, didn't go into any of the legal nuances. He just (predictably) copies Aereo's arguments that they're Just Like Cablevision! There's no actual analysis of whether that's true or whether there are material differences between the two, which is obviously *the* major topic of debate in this case. Mike just latches onto their argument, as he sides with every accused infringer. Instead of pointing to the actual substantive legal arguments, he cites the line about how they're trying to kill innovation just like the VCR and the Remote DVR! Instead of analyzing the legal issues, Mike decides which side he wants to win for policy reasons and then, working backwards, pretends like that side must have the better legal argument. Snorezville, dude. Sorry if you got your popcorn out for nothing.

Yeah! It's not like I posted the briefs on both sides and let people read them in full and make up their own... oh wait...

Re: Re: Re:

Yeah! It's not like I posted the briefs on both sides and let people read them in full and make up their own... oh wait...

Posting briefs is easy. That doesn't negate anything I said. You still didn't "go into any of the legal nuances." You still just copied "Aereo's arguments that they're Just Like Cablevision!" You still provided no "actual analysis of whether that's true or whether there are material differences between the two." Etc. I don't get your point, if there even is one.

The OP called me out for comment, and the only comment I had was that you hadn't actually said anything substantive that I could comment on. I'm not surprised. The case law around the public performance right on the internet is far from settled, and it's filled with nuances upon nuances. This stuff is not easy.

Re: Re: Re: Re:

and the 'anti-innovation, anti-competition arguments from the pro-copyright crowd' are what is going on yet again. preservation of old technologies and business practices prevents spending money to improve old services or introduce new ones. heaven forbid! moving into the modern day? absolutely no way! whatever next? invest in new technology?

Re: Re: Zombiewood

Re: Re: Re: Zombiewood

Wouldn't work.

Even a starving lion wouldn't want that taste in it's mouth, and they've proven they're so inept at killing actual threats that they'd probably only give each other paper cuts and minor bruising, no matter what weapons they were handed.

Two wrong assertions are key:

From prior piece by Mike:
"copyright law isn't built for modern technology, and that's creating all sorts of problems for innovative services." -- No, the means doesn't matter! Always been easier to copy than create, even if literally chiseling into stone.

But I skip to essentially the same point that Mike asserts here:
"They highlight that the broadcasters argument seems to be that copyright law is designed to protect them, rather than the public interest." -- EXACTLY! But you don't take it correctly: copyright as such is SPECIFIC right to copy for a LIMITED time. -- And yes, the "owners" are changing the time to forever; I mention only to bat down a sure objection from those who don't understand that you're in binary all-or-nothing mode, where (traditional, prior) copyright is half-and-half, and more recently mixed with large doses of money and control plus rampant lack of concern (from "both" sides) for rules that were previously agreed to.

I'll skip to that "Aereo" shouldn't be trying to dodge around the limited rights granted broadcasters, because does violate the clear intent of copyright. -- The means by which they do so are irrelevant, as Aereo has been granted NO obvious rights in the matter, they ARE just sneaking into a previously unconsidered area. -- Using someone else's work to make a buck, that's the bottom line.

Re: Two wrong assertions are key:

Like hollywood did when they moved west?

As to the "limited rights granted broadcasters", would you care to define those rights? Because sitting on the sidelines all we ever see is them demanding more control, more lockdown, and grabbing more rights for themselves.

Hey, pirates: produce your own content THEN innovate on delivery.

That's perfectly fine with I think even the most rabid "copyright maximalist": what's yours is yours, give it away IF you can. But taking someone else's (valuable) (content) product and "innovating" on how you get money from it, that's just plain grifting.

Umm no. No they aren't publicly funded. The airwaves they are broadcast over are publicly owned, but the networks and content are paid for with ad dollars and retransmission fees, and license those public airwaves. We as the viewing public don't own the networks nor do we pay for them with our taxes...Its not the same model as the BBC.

The only channel being federally subsidized is PBS and if Mitt Romney gets elected, that's likely to get cut off from tax dollars as well.

Re: Hey, pirates: produce your own content THEN innovate on delivery.

Broadcasting content over the airwaves IS GIVING IT AWAY FOR FREE. Why should their be any laws about what happens to it after it is already freely available to anyone with the technology to receive it?

Well, in part that broadcasting isn't actually broad, it's regional, local. That is to say that the station broadcasting only has the rights to use that program in their broadcast area. So as an example, a NY TV station pays for the rights to a given show, but only for their area. They don't have any rights in New Orleans, example.

So Aereo actually has to be extremely careful not to offer service to anyone outside the broadcast area, otherwise they are helping to violate copyright.

Now, one of the issues of Aereo is that users with an address in the area can view the material outside of that area. There isn't a real ruling on this yet. This could get interesting, otherwise people will just be buying PO box addresses in the zone to get free TV.

It's only that way because the broadcast area is limited by technology and FCC rules, and broadcast licensing schemes were built around that. There is no good reason someone can't broadcast anywhere around the world if the technology allows it, except it might upset some entrenched business models.

"Now, one of the issues of Aereo is that users with an address in the area can view the material outside of that area. There isn't a real ruling on this yet. This could get interesting, otherwise people will just be buying PO box addresses in the zone to get free TV."

Hasn't the use of Sling to do remote viewing been ruled valid? If so, then there is IMO no difference with remote viewing via Aereo. In either case, the feed is coming from a location that is not the same as where the viewing is occurring.

Throwing former grifter champion under the bus...

"Cablevision's position here is solely to abuse copyright law and an important decision on its own behalf to now crush a competitor." -- Ain't I always said corporations are amoral and will do anything for money? If anyone here has said that, it's me. But after arguing FOR Cablevision in prior pieces, Mike just casually cuts 'em when serves his purpose here.

What a troll is,what a troll does

Re: What a troll is,what a troll does

I meant constructive,but you get my drift. Beside the like to Avenue Q song "The Internet is for Porn" using Ben 10 footage,in a way to Imaging Gwen doing Kate Monster's Part and Ben doing Trekkie Monster's part to the song.Then opposed to Sesame Street one with Prairie Dawn and Cookie Monster's part respectively.

Not like Cablevison's case at all

Retransmission Consent

It's all about the retransmission consent and the revenue they lose out on if Aereo pulls locals only (which they do).

If Aereo has to pay nothing and Comcast has to under retransmission consent then one can understand why they are so peeved about this. I'm not saying it is right but you can understand their revenue motivations.